Consider This A Warning: Justice Scalia Losing The Fight To Defend The Fourth Amendment

"Someone called 911 and said you swerved so now I get to bother you."

"Someone called 911 and said you swerved so now I get to bother you."

Thomas Warns*

Yesterday the United States Supreme Court decided the Navarette v. California case. The case was a Fourth Amendment case that tested the limits of reasonable suspicion when it comes to traffic stops. In this case, the police received a 911 call that described a pickup truck that drove the caller off the road, and included a license plate number. Suspecting that the driver was driving under the influence of alcohol (or drugs), the police raced to the area and found the car still driving. After observing the car driving for five minutes and not seeing any erratic driving, the cops decided to stop the car solely based on the 911 call. The driver was not drunk but he was a drug dealer and after smelling marijuana, the officers looked in the truck bed and found over thirty pounds of the illegal plant.

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity...”
— Justice Antonin Scalia

Justice Thomas wrote the majority opinion in a 5-4 case, writing that under the totality of the circumstances the traffic stop was reasonable. One reason the 911 call was apparently reliable is because FCC rules require 911 calls to be recorded and callers to be traced and identified. Professor Orin Kerr however points out that this suggestion is flawed, since most people would have no idea what FCC rules are, and thus the rules are unlikely to make 911 calls any more reliable than another anonymous tip to police. The majority opinion managed to avoid the bright-line rule that the government wanted, which presumably would make a 911 call sufficient in all cases to make a traffic stop reasonable; the best that can be said of this decision is that Justice Thomas did his best to limit the decision solely to the facts of the case.

Justice Scalia’s dissent was joined by Justices Ginsburg, Sotomayor, and Kagan, and it gets to the heart of the matter. Justice Scalia writes:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Justice Scalia is right: if the driver is indeed committing an ongoing crime, drunk driving, the cops would surely be able to observe erratic driving and pull over the suspect quickly, since no one can snap their fingers and sober themselves up within minutes when they notice a cop nearby; if the driver just swerved to avoid a pothole or because of a momentary distraction (changing radio station, talking to passenger, etc.), then the 911 caller should be commended for avoiding an accident but both drivers should go on their merry way. If the cops pulled someone over every time “that jerk almost hit me!” then we’d need about three times as many cops in each precinct in order to pull over drivers who at worst may be uncourteous.

The fact of the matter is that the bar has been lowered yet again, and cops now need even less evidence to pursue a traffic stop. While most cops are likely to use proper discretion, it does not change the fact that they still have another tool in the arsenal with which to annoy drivers who are not in the process of committing any wrongdoing. If the potential crime is ongoing, the reasonable suspicion for a Terry stop applies, but here it seems that the potential crime was ended, in which case probable cause should be needed to stop the driver. Observing a driver obeying the laws of the road dutifully for five minutes should not satisfy a probable cause standard that the driver is driving under the influence. Anyone who follows the Supreme Court’s jurisprudence knows that Justice Scalia is often a boisterous defender of the Fourth Amendment. One can only hope he shows the same considerations for our right to be let alone from government interference if NSA wiretapping ever makes it to our Nation’s highest court.

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of Law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."